Can an employer modify the schedule of 2 “customer service host” employees so that they do not have any shared rest days because they are a couple?
Likewise, the store did not want to have 2 employees from the same family or as a couple working simultaneously in customer service.
Furthermore, the fixed-term contract of one of the employees in a relationship would not have been renewed due to his relationship with his spouse who was also an employee of the company.
Furthermore, the spouse of the employee in question has requested to work in the department or a transfer or even a contractual termination.
The company refused and the employee abandoned his position and was dismissed on July 16, 2021.
The employee couple contacted the rights defender on June 13, 2021.
On June 23, 2023, the rights defender rendered a decision which was published in the Official Journal of September 12, 2023.
The rights defender considers that the company's behavior is discriminatory and asks the company to approach the claimants in order to provide “just reparation”.
The rights defender took a special report in application of article 25 of ORGANIC LAW NO 2011-333 OF MARCH 29, 2011
In this regard, when his injunction has not been complied with, the Defender of Rights draws up a special report, which is communicated to the person in question.
The Defender of Rights makes this report and, where applicable, the response of the accused person public, according to the terms and conditions he determines.
Legal analysis of the Defender of Rights
The Defender of Rights:
- notes that MM. X and Y, on the basis of their family situation, were victims of discriminatory measures on the part of their former employer in disregard of articles 225-1 of the penal code and L. 1132-1 of the labor code, the employer does not failing to provide proof that these decisions were justified by objective and lawful elements unrelated to any discrimination;
- recommends that the company LEROY MERLIN get closer to the claimants in order to provide fair compensation for their damage, to modify its practices in terms of planning the working hours of its employees in order to respect the principle of non-discrimination, to raise awareness all those responsible for non-discrimination and to report on the follow-up given to this recommendation within 3 months of notification of this recommendation.
In this regard, the LEROY MERLIN company does not dispute the fact that the family situation of MM. X and Y was the instigator of actions she took regarding their schedules.
The company maintains that “employees, particularly in charge of the collection procedure, who are related or who are in a relationship, cannot work together in customer service, which could lead to a lack of checks and balances”.
The employer also criticizes Mr.
Management confirms that, when it was informed of the personal links between the two employees, "the store's customs and practices were applied, consisting of not having 2 people from the same family or as a couple working simultaneously in customer service." . From this date, the schedules of Mr.
It thus appears from the above-mentioned elements that the company has indeed applied a practice within the company consisting of not having employees who are related or in a relationship work together in customer service.
However, as mentioned above, this use is discriminatory to the extent that employees have no obligation to specify the content of their relationship, neither at the time of their hiring, nor during the execution of their employment contracts and that the nor can an employer take into account an employee's family situation when making decisions concerning them, particularly regarding transfers or working hours.
Therefore, the employer cannot criticize Mr.
Furthermore, the employer's actions necessarily had an unfavorable impact on the personal lives of the employees, the employer having decided to no longer assign them to the same hours and no longer grant them joint rest days. In this regard, the judges were able to consider that a change of schedule imposed on the employee, which excessively affected the employee's right to respect for his personal and family life or his right to rest, could justify the judicial termination of the his employment contract (16).
In its response letter dated August 8, 2022, the company LEROY MERLIN confirms the “store practice” which “consists of avoiding planning in the same sector two employees linked by family ties or marital status (in the broad sense” and which “aims […] to ensure everyone a perfect professional balance, a peaceful working climate and to avoid any suspicion of preferential treatment for some or others”, especially since the customer service sector is “ a “sensitive” sector (collections, merchandise returns, etc.).”
The company specifies, however, “ensure that employees linked by a family bond/as a couple can, at their request, benefit from the same leave dates”.
It appears from these elements that the company does not intend to call into question this usage which has the effect of making a distinction between employees on the basis of their family status.
The possible absence of "counter-power" or the "sensitive sector" of customer service invoked by the employer concerning employees with no relationship of subordination between them, and for whom it has not been demonstrated that their relationship has damaged the proper functioning of the establishment, cannot justify the restrictions placed on their rights and their individual freedoms, including in a preventive manner.
***
To our knowledge, special reports published by the Defender of Rights are rare.
The company should probably have followed the position of the Defender of Rights who demanded fair compensation for the two employees, rather than having to face this publicity.
We must salute this decision and the work of the rights defender.
Source :
. Décision du défenseur des droits du 23 juin 2023 (JO 12 sept 2023)
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000048059969
. Leroy-Merlin épinglé par la Défenseure des droits pour discrimination envers un couple de salariés Le Monde 17 septembre 2023
. Amour au travail : est-ce risqué pour les salariés ?
https://www.village-justice.com/articles/amour-travail-est-risque-pour-les-salaries,33022.html
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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